Job turnover trends changing

Until recently, most employees used to work for the same employer for their entire lives. There was not a lot of lateral movement by workers between employers.

Times have certainly changed. Current U.S. statistics suggest that the average person will change jobs almost every fours years. The same statistics show that people over the age of 50 changed jobs approximately every 10 years over the course of their professional lives.

This increase in job turnover is startling and has many consequences. One of them is that employers are being asked regularly to provide references for their ex-employees.

There is a lot of confusion as to what information, if any, an ex-employer is obligated to give to potential employers. And the choice to provide a reference can have severe consequences if mishandled.

First of all, employers have no legal obligation to provide references for former employees, unless ordered to do so by a court or arbitrator. However, employers are legally obligated to provide, if requested by an employee, a certificate of employment, pursuant to the Civil Code of Québec and Act Respecting Labour Standards.

This certificate must state only the nature and duration of the employment, the dates on which the employment began and ended, and the employer's name and address. It is not meant to provide any information on the quality of the work or the employee's conduct.

Requests for information regarding the conduct of an employee and the quality of his or her work are trickier.

Information about employees, past or present, is protected by law. It is against the law for an employer to disclose information about an employee, except when required by law, without the authorization of that employee. Accordingly, if a potential future employer of a candidate calls a previous employer to inquire as to the performance or status of this candidate, an employer cannot disclose any information without getting the consent of that candidate.

As with most legal matters, it is best to get that consent in writing. Indeed, an employer who violates this law can be exposed to serious liability. Moreover, even if consent is obtained, employers must still be careful of what they say.

Obviously, the information disclosed must be non-discriminatory. For example, an employer cannot provide any information that the employee would not be obliged to disclose during an employment interview, such as his or her sexual orientation, age, ethnic origin, religion or marital status.

The employer also has to make sure not to disclose information about the employee's private life. Even talking about an ex-employee’s hobbies or family life could constitute a breach of privacy. The information provided must therefore be directly related to the employee's work performance.

Negative comments should be avoided, but if they are made, an employer must be able to sufficiently back them up if challenged. Indeed, an employer who gives a negative reference could be liable for that employee's inability to find gainful employment. The damages awarded by a tribunal could be substantial.

The easiest way to avoid any trouble is to simply refuse to give references. From my experience, many corporations have “no reference” policies and will simply provide employees with a certificate of work, as required by law.

However, many employers do want to help out former employees and provide a positive reference. In order to avoid ambiguity and issues of consent, employers can provide those employees with a letter, addressed to any future potential employee, which highlights the performance of the employee. The employee can then give this letter to any potential employer if they so choose.

If called by potential employers for a reference, ex-employers can simply explain that they provided their former employee with a letter and leave it at that. This ensures that the employee is the master of his or her personal information and prevents the employer from disclosing any information about an employee and running afoul of the various relevant laws.

With this strategy, all the involved parties have what they want: the ex-employer was able to please a former employee without exposing himself or herself to undue liability, the ex-employee has a letter of reference and the potential employer has a better picture of who they might hire. To use one of my mother’s favourite phrases, it’s also “good karma”. Given how often people change jobs, we might all be in one of these positions during our professional lives.

Gabriel Granatstein, a lawyer at Ogilvy Renault LLP, based in Montreal, practices labour and employment law.

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